Persuasive prevention : Towards a Principle for Implementing Article 4(h) and R2P by the African Union

Abstract

While the legality of intervention without Security Council authorisation is still debatablein international law, over-reliance on military intervention increases the risk of too much focus on reactive rather than proactive strategies. If the thresholds for Article 4(h) intervention – like those of the responsibility to protect – are serious international crimes subject to universal jurisdiction, it follows that measures to ensure the observance of the law in prospect, rather than intervention and penalisation of violations in retrospect,are important in preventing violations. Therefore, in order to in a timely manner and effectively implement Article 4(h) and R2P, the missing link is borderless 'persuasive prevention' which aims at enforcing fundamental human rights obligations to prevent mass atrocity crimes stipulated in Article 4(h). To this end, as a minimum, the AU should discharge its responsibility to prevent human rights violations through the 'force of law'. Where atrocities are likely to take place, the African Standby Force (ASF) should be deployedin a timely way, not to defeat a State, but to pursue perpetrators of mass atrocity crimes. To achieve this, the ASF should have the 'capability to protect' to ensure the 'obligationto prosecute or extradite'. Although the AU has taken an interventionist stance, what is needed most is early action to prevent mass atrocity crimes. The AU may need to establish a body to monitor the implementation of obligations whose breach may lead to the heinous crimes in Article 4(h). In addition, the AU needs a legally binding instrument to ensure accountability and end impunity for crimes in Article 4(h). The idea is to influencethe calculus of potential authors of atrocities and ensure compliance with human rights and humanitarian law obligations.